Tuesday, September 21, 2004

Not an illegal war (Normblog)

Many opponents of the Iraq war, recently including Kofi Annan, continue to repeat the mantra that the war was 'illegal', as though this were an obvious and established fact. On the contrary, this claim happens to be clearly incorrect. (Or at least, to put the matter in the most generous and open-minded way I can bring myself to do, this claim is very uncertain and far from self-evident.)

The very thought of explaining all the reasons once again makes me tired. But some - though far from all - of the key arguments are touched on clearly and concisely in a discussion by Matthew Yglesias, who writes for the progressive-Democratic magazine The American Prospect as well as blogging up a storm. Yglesias's credibility in making these arguments is enhanced by his having concluded that the war was a bad idea - on substantive policy grounds, not legalistic ones - and his hostility to the Bush administration. I happen to disagree with him on the first point, but it does suggest that his analysis of the legal issues is not simply an effort to rationalize his substantive position on the war.

His sensible advice to other opponents of the Iraq war (and of George Bush) is that endlessly harping on legalistic objections to the war is not only inaccurate but also politically and morally misdirected. But all this is secondary to the fact that his arguments here about the legality of the war are solid and convincing on their own terms (and carefully formulated, even understated - in fact, I believe that they can be developed more fully and strongly).

Many people have said that their bedrock reason for opposing the Iraq war was that it violated international law - meaning, essentially, that it was not explicitly authorized by the UN Security Council. This is a logically coherent position, though incorrect and in some cases disingenuous. But some of these people also argue (or imply) that the supposedly illegal character of the war was a valid reason for governments to vote against it in the UN Security Council in the first place. That makes no sense. Yglesias ends his discussion by saying:

The nations that refused to vote a second resolution were acting poorly in their capacity as judges - as expositors of international law - but acting well in their capacity as policymakers. Since the UN Security Council is not a court, but a policymaking body, that strikes me as perfectly appropriate. But still, the dispute must be seen for what it was - a policy dispute in which the US, UK, and Spain outlined a bad policy, and other nations outlined a better one - not a legal controversy.

(See also here.) Actually, whatever one thinks of the policy (or policies) put forward by the US, UK and Spain, it is quite wrong to say that the governments who opposed them in the Security Council 'outlined a better one'. They did not. The reality is that they pursued, with individual shadings and variations, a strategy of disingenuous and irresponsible obstructionism, without ever offering a serious and constructive alternative to the US-British position. But leaving this problem to one side, Yglesias is quite right to stress that this was fundamentally 'a policy dispute' and 'not a legal controversy'.

If the governments of France, Russia, China, and Germany had wanted to make the war a legal one by the criterion they often invoked - i.e., authorization by the UN Security Council - then all they had to do was vote in the Security Council to authorize the war. (By refusing to do so, incidentally, they were effectively refusing to enforce UN Security Council Resolution 1441, which they had passed unanimously.) Their 'legal' objections to the war were just a red herring. The real disagreements lay elsewhere. (Jeff Weintraub)

Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below;

Paragraph 11 states:

Directs the Executive Chairman of UNMOVIC and the Director-General of the IAEA to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations, including its obligations regarding inspections under this resolution;

In my earlier briefings, I have noted that significant outstanding issues of substance were listed in two Security Council documents from early 1999 (S/1999/94 and S/1999/356) and should be well known to Iraq. I referred, as examples, to the issues of anthrax, the nerve agent VX and long-range missiles, and said that such issues "deserve to be taken seriously by Iraq rather than being brushed aside...". The declaration submitted by Iraq on 7 December last year, despite its large volume, missed the opportunity to provide the fresh material and evidence needed to respond to the open questions. This is perhaps the most important problem we are facing. Although I can understand that it may not be easy for Iraq in all cases to provide the evidence needed, it is not the task of the inspectors to find it. Iraq itself must squarely tackle this task and avoid belittling the questions.

Thus, the process outlined in Paragraph 11 reveals that Iraq was in violation of its obligations pursuant to Paragraph 4. Paragraph 13, meanwhile, states:

Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations.

Now you get into some thorny issues about legislative history and interpretation as to what "serious consequences" means. As I say, the legal basis of the war would have been much clearer had their been a second resolution specifically authorizing such action. Nevertheless, under the circumstances, and in light of SCR 687 and other earlier Iraq resolutions (which, per Paragraph 1 Iraq was in material breach of, thus percipitating SCR 1441) which were adopted as part of a cease-fire agreement to halt an ongoing war, it's not at all implausible to regard this as authorizing the use of force unless SCR 1441 were to be superceded by another Iraq resolution, which it was not.

Some correspondents seem to be putting a lot of weight on the fact that Hans Blix, the man charged with delivering the relevant Paragraph 11 report, opposed the war. But Blix's objections were policy objections. He thought, rightly, that Iraqi breaches of its requirements could be better dealt with through a slight tightening of the screws and a continuation of the inspections process than via war. Nevertheless, that was a policy judgment, not a legal one.

At any rate, one could make out an argument that the war was illegal, but such an argument would need to rest on the construal of "serious consequences" not on the fact that Iraq was in material breach of its obligations. As I said in the previous post, I think that for war critics to focus on these legalistic objections is a serious political mistake because it makes Saddam Hussein out to be the aggrieved party here. The wrongheadedness of the war, however, does not lie in the fact that it unfairly deprived Saddam and the Iraqi Baath Party of power. The nations that refused to vote a second resolution were acting poorly in their capacity as judges -- as expositors of international law -- but acting well in their capacity as policymakers. Since the UN Security Council is not a court, but a policymaking body, that strikes me as perfectly appropriate. But still, the dispute must be seen for what it was -- a policy dispute in which the US, UK, and Spain outlined a bad policy, and other nations outlined a better one -- not a legal controversy.

About Me

Jeff Weintraub is a social & political theorist, political sociologist, and democratic socialist who has been teaching most recently at the University of Pennsylvania, Bryn Mawr College, and the New School for Social Research, He was a Visiting Scholar at the Center for European Studies at Harvard University in 2015-2016 and a Research Associate at the Graduate School of Social Work and Social Research, Bryn Mawr College.
(Also an Affiliated Professor with the University of Haifa in Israel & an opponent of academic blacklists.)